Why We Should Not Bring The Death Penalty Back In New York.


Part 2


By Jeffrey Deskovic


Appellate Review Is Inadequate To Protect The Innocent.

In many of the wrongful coniction cases, including mine, the person eventually cleared often has had their appeals exhausted. Guess what happens to those who have been sentenced to death whose appeals have run out? The sentence is carried out. As an illustration of how inadequate appellate review is to stop miscarriages of justice, let us recount the following New Yorkers who were wrongfully imprisoned whose convictions the appellate process failed to remedy, starting with those convicted of murder: Roy Brown, 15 years for murder, Dennis Halstead,
16 years for murder, John Kogut, 17 years for murder, Kerry Kotler, 10.5 years for murder, Douglas Warney,
9 years for murder.

Those convicted of charges other than murder: Scott Fapiano, 21 years; Alan Newton, 21 years; Anthony
Capozzi, 20 years; Kharey Wise, 11.5 years; Victor Ortiz, 11 years; Michael Mercer, 10.5 years; Terry Chalmers, of Westchester, 7 years; Charles Dabbs, of Westchester, 7 years; Antron McCray, 6 years;
Kevin Richardson, 5.5 years; Yusef Salaam, 5.5 years; Raymond Santana, 5 years. By the way, the last
four mentioned, along with Kharey Wise, were convicted amid the hype surrounding a brutal rape, referred
to by the media as The Central Park Jogger case, akin to the type of hype which surrounds cop killings.

Doubtlessly the atmosphere played a role in their convictions, as it would in any crime which generateshysteria and outrage, again much as occurs in a cop killing case. The prospect of an innocent person being executed is no mere theoretical possibility. Consider the following excerpt from capital cases, which I borrow from a pamphlet of the magazine Justice Denied: “Hours before Freddie Lee Wright was executed in March 2000, Alabama Supreme Court Justice Johnstone vainly protested ‘…his petition recites persuasive facts that support the conclusion that he is innocent and that his conviction results from lack of a fair trial…the likelihood
[is] that we are sending an innocent man to his death.’”

Let’s look at the lessons of innocence and the death penalty in states that have the death penalty. Consider that Ray Krone was twice wrongfully convicted of murder before being cleared, and spent 4 years on death row. Consider that Earl Washington came within 9 days of being executed. Consider that Ron Williamson came within
5. Nicholas Yarris was nearly executed because at the end he gave up and actually got permission from a judge to give up what was left of his appeals, in effect volunteering to die. Consider the other exonerees who were on death row: Kirk Bloodsworth, Charles Fain, Ronald Jones, Ryan Mathews, and Robert Miller. Consider Frank Smith, who actually died on death row while still undergoing the appeals process, before being post-humously
cleared by DNA.

Consider too how frighteningly close in New York itself, in the short time that the death penalty statute was on the books, we came to senthetencing an innocent person to death, when Douglas Warney, of Rochester, was wrongfully charged and convicted of murder. Prosecutors tried to indict him for first degree murder so that they could seek the death penalty.

But the grand jury only indicted him for second degree murder. I would like to point out that often the circumstance which leads to one murder case being classified as a death penalty case, is being convicted
of another felony along with the murder. Often being convicted of a rape with a murder serves as a basis to classify a murder as a death penalty eligible. If I was eighteen years old as opposed to sixteen, I have no
doubt that I would have been sentenced to death. I was charged with a brutal crime, and there was a lot
of outrage and public pressure. My appeals ran out in 1999. I was not cleared until 2006. There would have
been no 2006 for Jeffrey Deskovic.

Then think about two things which are even more frightening: DNA evidence is only available in 10% of all serious felony cases, and there are nowhere near the legal resources needed in order to work oncases of innocence. The Innocence Project alone receives hundreds of letters each month requesting assistance, and already has a huge pile of cases waiting for representation. Similar organizations also have a tremendous backlog. For those two reasons it is impossible to tell for certain just how many innocent people there are in prison. Against this backdrop, when a person is sentenced to death, there is the added pressure of working against the clock. That is a recipe for disaster.

In any brutal or heinous crime, there is an emotional environment of anger, outrage, and public pressure on the police to solve the crime. When a police officer is killed, that is even more true, with the added feature that the police are now emotionally involved because a colleague was killed, thus setting the stage for mistakes to be made. I believe that life is bestowed by God and should not be taken, including that of law enforcement officers. I am against all murders, whether by street violence, or statesanctioned execution, carrying out the death penalty. I do not believe that the life of a person who chooses a career in the private sector is less valuable than that of a law enforcement officer. Therefore one crime should not carry the death penalty while another does not.

It has been proven through studies and statistics, that African-Americans are disproportionately sentenced to death. If someone who is white is convicted of the same type of crime as a African-American, the African-American is more likely to receive the death penalty. Similarly, an African-American convicted of killing a white man is more likely to be sentenced to death than a White killing a Black.

There is an element of classism also. You will never find a rich person or one with political connections on death row. The reason is that they can afford the best lawyers, helping them to either avoid being arrested in the first place, or to beat the rap. As if those two factors are not enough, I don’t believe that there is a judge alive who will sentence a rich man to death.

Then there are also geographic disparities, wherein what part of the state that one lives in makes it more
likely that one will receive the death penalty. Thus it is arbitrary who receives the death penalty and who
does not. There are moral problems with the existence of death rows. The prisoners are kept in their cells twenty
three hours a day, with the uncertainty of whether they will be executed hanging over their head, often for eight, or nine years, or even decades at a time. That is cruel and inhumane, and certainly enough to make anyone insane. Yet considering how flawed the system is, it is unavoidable since many are cleared after their appeals
have run out, thereby making a speeding up of the process unthinkable.

Thus the whole idea of having a death penalty becomes unworkable in practice. Additionally, there have
been botched executions, in which the condemned suffer.

There are a variety of myths surrounding the death penalty. One of them is that is gives closure to victims families. I have spoken with a woman, Marie Verzulli, whose family member was murdered, who related to me that in the course of her giving lectures against the death penalty, she had spoken to many murder victim family members who said that after the death penalty had been carried out that they had not received any closure. In fact, some
of them who had been public about wanting the murderer to be executed felt badly afterwards, that they had lowered themselves down to the murderers level. Many of them felt also that their pain was kept alive by the inevitable media attention that happens whenever the accused appeals were heard. And yet, the appeals could never be done away with because of the errors in the system. Were it not for the death penalty, the cases would not receive that type of attention.

Another myth is that it serves as a deterrent. There is no evidence which proves that it deters anybody from committing a similar crime. Those who murder in cold blood, after carefully premeditating it, do not believe that they will get caught, so it does not hinder them. Those who murder in the heat of the moment, are consumed with emotion and are not thinking about the consequences either. Thus neither type of murderer is deterred. Still another myth is that the death penalty is necessary to protect society. Prison has served thus far to protect society against two of the most notorious murderers, Charles Manson and David Berkowitz.

Yet another myth is that the death penalty is a cheaper option than imprisonment. According to a news
story out of Texas, entitled “Executions Cost Texas Millions”, reporters determined that it cost Texas two
point three million dollars more per case than a non-death penalty case. In New York, from 1995-2004, when we had the death penalty on the books, we spent $200 million dollars specifi-cally because of the statute’s existence, and executed nobody. Those resources could be better spent on social programs, such as education.

The death penalty does a disservice to us all. It drains financial resources, which could be better spent in other areas. It puts victim families through more agony. The process itself is inhumane, leaving the condemned unsure of whether he will be killed or not. But perhaps the most important one is that innocent people will be executed. The justice system, as it exists today, is much too flawed for us to have a penalty as irreversible as death. At least with
wrongful incarceration, we can free the innocent. With death, there is nothing that we can do. A wrongful conviction can happen to anyone, at anytime. If we have a death penalty, that means that not only are all of us
at risk of being wrongfully convicted, but we are also at risk at being executed as the penalty.

Thus it is for our own individual protection, along with that of our sons and daughters, mothers and fathers, other family members, and friends, that we must not have a reinstatement of the death penalty. It is not about being soft on crime, and we must make our state and federal legislators understand that.

Last week Gov. Spitzer announced his intention to expand the DNA databank, by mandating that those who had been incarcerated for misdemeanors also be required to give DNA samples. I wholeheartedly endorse this latest
legislative initiative by Gov. Spitzer, as I have been actively advocating for laws that will protect the innocent, prevent and overturn wrongful convictions, and make it easier to bring justice to those cases wherein a wrongful conviction has occurred.

Expansion of the DNA Databank means that there will be more samples on file, so that when someone who is innocent receives a DNA test in which crime scene evidence is run through that databank, there will be more samples to check it against. In my case, for example, when DNA was run through the system, it matched someone else whose sample was in the system, thus simultaneously showing his guilt and my innocence.

Had Steven Cunningham only committed a misdemeanor and not a felony, his sample would not have been in the databank, I would still be in prison serving a life sentence. Expanding the databank pool increases the odds that
matches will be found when the innocent request DNA Testing of crime scene materials.

On the other side of the coin, opponents have raised objections, citing privacy issues, and worries as to whether insurance companies and employers will gain access to this information and decline medical coverage and employment opportunities.

With respect to insurance companies and employers, it has not happened yet that anyone has been denied employment or coverage based upon genetic predisposition. There is no reason to think that anyone will, because
those places do not have access to that information. However, to be on the safe side, legislation should be enacted to make it illegal for that information to be accessed either by insurance companies or employers.

With respect to privacy, it is my position and hopefully the position of most reasonable individuals, that when the competing interests of privacy and establishing innocence are weighed out, innocence, and the right to not be imprisoned for crimes one has not committed, certainly must trump any privacy concerns. To hold otherwise is to
say that it is okay for the innocent to sometimes remain in prison, because the DNA pool is not large enough to have potentially included the actual perpetrator of the crime for which they were wrongfully convicted.

I salute Gov. Spitzer for his proactive decision, indicating his concern for innocents caught in the web of the criminal justice system, and the recognition that the innocent are sometimes found guilty.